Supreme Court Justice Ruth Bader Ginsburg gave an unusual (and rare) interview for the New York Times.  She weighed in favor of Judge Sonia Sotomayor’s nomination, as well as, shared her thoughts on abortion:

Q: If you were a lawyer again, what would you want to accomplish as a future feminist legal agenda?

JUSTICE GINSBURG: Reproductive choice has to be straightened out. There will never be a woman of means without choice anymore. That just seems to me so obvious. The states that had changed their abortion laws before Roe [to make abortion legal] are not going to change back. So we have a policy that affects only poor women, and it can never be otherwise, and I don’t know why this hasn’t been said more often….

Q: Are you talking about the distances women have to travel because in parts of the country, abortion is essentially unavailable, because there are so few doctors and clinics that do the procedure? And also, the lack of Medicaid for abortions for poor women?

JUSTICE GINSBURG: Yes, the ruling about that surprised me. [Harris v. McRae — in 1980 the court upheld the Hyde Amendment, which forbids the use of Medicaid for abortions.] Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong. (emphasis mine)

Q: When you say that reproductive rights need to be straightened out, what do you mean?

JUSTICE GINSBURG: The basic thing is that the government has no business making that choice for a woman.

So basically she sees abortion as a means of population control that should be made readily available to those who are not able to afford it for themselves.  Too bad the Times reporter didn’t get her to articulate which populations we “don’t want to have too many of.”

The logic she demonstrates is mind-boggling to me as well.  One one hand, “government has no business making that choice for a woman.”  But on the other hand she wants the government to pay for said “choice.”  Well, which do you want Justice Ginsburg?  The government to not be involved or involved?  She also doesn’t like waiting periods either.

It’s entirely appropriate to say it has to be an informed decision, but that doesn’t mean you can keep a woman overnight who has traveled a great distance to get to the clinic, so that she has to go to some motel and think it over for 24 hours or 48 hours.

She also thinks the prolife position is doomed to failure.

I still think, although I was much too optimistic in the early days, that the possibility of stopping a pregnancy very early is significant. The morning-after pill will become more accessible and easier to take. So I think the side that wants to take the choice away from women and give it to the state, they’re fighting a losing battle. Time is on the side of change.

Apparently she didn’t know that people are more pro-life than pro-choice.  Justice Ginsburg is representative of the type of Supreme Court nominees we’ll be getting from the Obama administration.  Let’s pray he won’t have a chance to make another nomination.

8 comments
  1. I would be careful to note that she did say she was wrong 3 sentences later.. “But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.”

    I wish they would have done a better job following up on that.. How exactly was she wrong? She thought the court had a eugenic rationale for abortion, but after the ruling she recognized that it didn't? I don't follow… But now she will be allowed to say we are taking it out of context no matter what we say she meant.

  2. Allow me to help, Shane, to clarify the logic you mind-boggling.

    You say, “One one hand, “government has no business making that choice for a woman.” But on the other hand she wants the government to pay for said “choice.” Well, which do you want Justice Ginsburg?”

    Now, the mistake you make here is the assumption that the absence of government involvement in choice is necessarily incompatible with government involvement in facilitating the choice itself.

    This is fallacious reasoning.

    Government involvement is not in an of itself impermissible, on Ginsberg's view. Since the Fourteenth Amendement provides equal protection to all citizens under the law, a law is unconstitutional if it places an undue burden on poorer women.

    On Ginsberg's view, the choice itself is a right, and can only be infringed to a limited extent, and then only for a compelling state interest. For instance, she concedes that and “informed decision” is important, and that thus government has an interest in ensuring information about the choice be provided to a woman before the choice is made. However, government requirements that mandate, say, travel, are unfairly discriminatory against poor women who haven't the means to accomplish the requirements. Thus poor women are placed in a position where women of superior economic means are not.

    The fault in your line of reasoning here, Shane, is that government funding to facilitate the woman's right to a choice is likewise incompatible, when in fact is is fully compatible with the same rationale Ginsberg employs to deny the constitutionality of government restrictions which foreclose the option of abortions for poorer women.

    I would be happy to help clarify if you are further confused as to any legal issues. Great blog!

  3. Very true. They followed up with questions that fit their worldview.
    Also didn't really bring it up in this post, but having a sitting Supreme Court Justice, openly endorse a nominee is unheard of and inappropriate.

  4. If you read the interview carefully it is clear that this (very poorly worded) statement is not representative of Ginsburg’s personal or judicial view – it is a comment on the issues/attitudes preceding and surrounding the Roe decision at the time, in the 70s. Those of us of a certain age recall population control as being a much larger issue on the global and national radar back then than it is now. And it factored into many pro-abortion arguments.

    Although not a stated basis for the decision, population control as a sub-context was alluded to in the introductory paragraphs of the actual decision which states that the abortion argument was ‘complicated’ by other issues including race, poverty and population control.

    Read the words yourself: http://www.tourolaw.edu/Patch/Roe/

  5. Well, if she WERE saying what she APPEARED to be saying, I certainly would not defend the statement. And regardless, she should still clarify such a thoughtless statement.

    I just have learned that anything posted on the internet – if it sounds too 'good' or too 'awful' to be true (regardless of political sympathies) – it usually is not true. Or is only partially true.

    I hope for everyone's sake that in this case, I am right in my interpretation.

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